La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899)

8/17/2019 La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899)

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175 U.S. 423

20 S.Ct. 168

44 L.Ed. 223

LA ABRA SILVER MINING COMPANY, Appt.,

v.UNITED STATES.

No. 29.

Argued on question of jurisdiction November 30 and December 1, 1898.

Argued on merits February 20, 21, and 23, 1899.

Decided December 11, 1899.

[Syllabus from pages 423-425 intentionally omitted]

The questions involved in this case arise from a claim made by the La

Abra Silver Mining Company, a New York corporation, for damages

alleged to have been sustained in consequence of certain acts andomissions of duty upon the part of official representatives of the Republic

of Mexico.

The claim was originally the subject of investigation by a commission

organized pursuant to a convention between the United States of America

and the Republic of Mexico concluded July 4, 1868, and proclaimed

February 1, 1869. 15 Stat. at. L. 679.

An award was made by the Commission in relation to this claim, but it has been executed only in part—its full execution having been suspended by

legislation in conformity with which the present suit was instituted to

ascertain whether the award had been obtained by fraud effectuated by

means of false swearing or other false and fraudulent practices on the part

of the La Abra Company, its agents, attorneys, or assigns. 27 Stat. at L.

409, chap. 14.

It will conduce to a clear understanding of the questions to be determinedif we state fully the circumstances that led to the organization of the

commission, and show how it came about that a court established by this

government took cognizance of a moneyed demand made by an American


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corporation against a foreign government.

By the above convention of July 4, 1868, it was provided that all claims

on the part of corporations, companies, or private indiviauals, citizens of

the United States or of the Republic of Mexico, arising from injuries to

their persons or property committed by the authorities of the respective

governments, and presented to either government for its interposition withthe other since the treaty of Guadalupe Hidalgo of February 2, 1848, and

which remained unsettled or did not arise out of any transaction prior to

that date, as well as any other claims presented within the time prescribed

in the convention, should be referred to two commissioners—one to be

appointed by the President of the United States by and with the advice and

consent of the Senate and the other by the president of the Mexican

Republic.

The commissioners were conjointly to investigate and decide the claims

presented to their notice in such order and manner as they thought proper,

but 'upon such evidence or information only' as should 'be furnished by or

on behalf of their respective governments.' Where they failed to agree in

opinion upon any individual claim, they were to call to their assistance an

umpire, who was to decide upon it finally and without appeal. It was

competent for each government to name one person to attend the

commissioners as its agent, to present and support claims on its behalf,

and to represent it generally in all matters connected with theinvestigation.

When every case presented had been decided by the commissioners or the

umpire, the total amount awarded in favor of the citizens of one

government was to be deducted from that awarded to the citizens of the

other government, and the balance to the amount of $300,000 was to be

paid to the government in favor of whose citizens the greater sum had

been awarded, without interest or any other deduction than that specifiedin the convention. The residue was to be paid in annual instalments not to

exceed $300,000 in any one year, until the whole amount had been paid.

The contracting parties agreed to consider the result of the proceedings of

the commission as a full, perfect, and final settlement of every claim upon

either government, arising out of any transaction of a date prior to

ratification of the convention, and to give full effect to the decision of the

commission or the umpire without objection, evasion, or delay; and theyfurther engaged that every such claim, whether or not presented to the

notice of, made, preferred, or laid before the commission, should from and

after the conclusion of its proceedings be considered and treated as finally


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settled, barred, and thereafter inadmissible.

The commission was organized in the city of Washington, and held its

first meeting on the 31st day of July, 1869, Mr. William H. Wadsworth

and Senor Don Miguel Maria de Zamacona being the commissioners

respectively, and Mr. J. Hubley Ashton and Mr. Caleb Cushing, the agents

respectively, on behalf of the United States and Mexico. Dr. FrancisLieber, the first umpire, having died, he was succeeded by Sir Edward

Thornton, who at that time was the British minister accredited to the

government of the United States at Washington.

On the 23d day of February, 1870, Secretary Fish issued a circular

referring to the convention of 1868 and stating that the Department of

State deemed it advisable to refer to the joint commission all claims of

corporations and citizens of this country without special examination of

their merits. He took care to say that the government thereby expressed no

opinion either as to the merits of the claims presented or as to the

principles of law to be invoked in their support. The responsibility of

deciding questions of fact and law, he observed, rested with the

commissioners.

On the 17th day of March, 1870, the La Abra Company gave written

notice to the Secretary of State that it claimed from Mexico $1,930,000

'for damages and losses suffered by it in consequence of the violence andoutrages committed by the authorities of Mexico against the rights of said

company in 1867 and 1868.' It asked for the interposition of the

government of the United States with Mexico for the payment of that

demand, and requested that its claim and proofs thereafter to be produced

be referred to the commission for settlement. This notice was transmitted

by the Secretary to the commission.

Subsequently, June 14, 1870, the company filed with the commission amemorial of its claim, stating the amount thereof to be $3,000,030. Before

the case was finally heard the claim was increased to $3,962,000.

The period within which the commission was to conclude its labors was

from time to time extended by the two governments. Of the claims

presented by the United States there was allowed the sum of

$4,125,622.30, while of the claims presented by Mexico the sum of

$150,498.41 was allowed.

In respect of the claim of the La Abra Company the commissioners

differed in opinion, and the case went to the umpire for consideration.


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The award of the umpire, which was made December 27, 1875, embraced

the following items as representing the damages sustained by the La Abra

Company and to be paid by the Republic of Mexico: (1) On account of

subscriptions and sales of stock, $235,000; (2) money lent and advanced,

$64,291.06; (3) rent, expenses, salaries, law expenses, $42,500: (4)

amount derived from reduced ores, $17,000; (5) ore extracted from the

mines and deposited at the mills, $100,000; in all, $458,791.06. On$358,791.06, the aggregate of the first four items, the umpire allowed

interest from March 20, 1868, at 6 per cent, and upon $100,000, the fifth

item, interest was allowed from March 20, 1869. The total amount of

principal and interest allowed was $683,041.32.

An application was made to the umpire by the government of Mexico for

a rehearing of the case, but a rehearing was denied.

Subsequently, the Mexican government without at all disputing its

obligation under the convention of 1868 to comply with the award, placed

in the possession of the Secretary of State of the United States certain

books, papers, and documents which it alleged had been then recently

discovered and would show that the claim of the La Abra Company was

not only fictitious and fraudulent, but had been supported by false and

perjured testimony. At that time a large part of the sum awarded to the

company had been paid by Mexico and was in the hands of the Secretary

of State. The distribution of the amount received had been delayed by theSecretary acting under the orders of the President to await legislation

deemed necessary in order to make good to the fund the amount with

which it was chargeable, and also because, as stated by the Secretary, it

was desirable that the form and manner of the reservation from the

instalment in hand of the expenses of the government should first be

settled.

These difficulties were met by the passage of the act of June 18, 1878. 20Stat. at L. 144, chap. 262.

By the first section of that act the secretary of State was authorized and

required to receive all moneys paid by the Mexican Republic under and in

pursuance of the conventions of July 4, 1868, and April 29, 1876, and

whenever and as often as any instalments should be paid by the Mexican

Republic to distribute the moneys received in ratable proportions among

the corporations, companies, or private individuals respectively in whosefavor awards were made, or to their legal representatives or assigns,

except as in that act otherwise limited or provided, according to the

proportion which the respective awards should bear 'to the whole amount


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of such moneys then held by him, and to pay the same, without other

charge or deduction than is hereinafter provided, to the parties

respectively entitled thereto.'

By the second section it was provided that 'out of any moneys in the

Treasury not otherwise appropriated a sufficient sum is hereby

appropriated to enable the Secretary of the Treasury to pay to theSecretary of State of the United States, in gold or its equivalent, the

equivalent of fifty thousand five hundred and twenty-eight dollars and

fifty-seven cents in Mexican gold dollars, and ten thousand five hundred

and fifty-nine dollars and sixty-seven cents in American gold coin, and

eighty-nine thousand four hundred and ten dollars and seventeen cents in

United States currency, said sums being the aggregate in said currencies

respectively of the awards made under the said convention of July 4,

1868, in favor of citizens of the Mexican Republic against the UnitedStates, and having been deducted from the amount awarded in favor of the

citizens of the United States, and payable by Mexico, in accordance with

article four of the said treaty; and that said sums, when paid to the

Secretary of State as aforesaid, shall be regarded as part of the awards

made under the said treaty, to be paid or distributed as herein provided.'

The third section made provision for meeting out of the moneys received

by the Secretary the expenses of the commission, including contingent

expenses paid by the United States as ascertained and determined in

pursuance of the provisions of the treaty.

The fourth section provided that in the payment of money in virtue of the

act to any corporation, company, or private individual, the Secretary of

State should first deduct and retain or make reservation of such sums, if

any, as might be due to the United States from any corporation, company,

or private individual in whose favor awards were made under the

convention.

The fifth section of the act was in these words: 'And whereas the

government of Mexico has called the attention of the government of the

United States to the claims hereinafter named with a view to a rehearing,

therefore be it enacted, that the President of the United States be, and he is

hereby, by, requested to investigate any charges of fraud presented by the

Mexican government as to the cases hereinafter named, and if he shall be

of the opinion that the honor of the United States, the principles of public

law, or considerations of justice and equity, require that the awards in thecases of Benjamin Weil and La Abra Silver Mining Company, or either of

them, should be opened and the cases retried, it shall be lawful for him to

withhold payment of said awards, or either of them, until such case or


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cases shall be retried and decided in such manner as the governments of

the United States and Mexico may agree, or until Congress shall

otherwise direct. And in case of such retrial and decision, any moneys

paid or to be paid by the Republic of Mexico in respect of said awards

respectively shall be held to abide the event, and shall be disposed of

accordingly; and the said present awards shall be set aside, modified, or

affirmed, as may be determined on such retrial: Provided , That nothingherein shall be construed as an expression of any opinion of Congress in

respect to the character of said claims, or either of them.' 20 Stat. at L.

144, chap. 262.

Pursuant to the direction of President Hayes the investigation required by

the fifth section of the act of July 4, 1878, was made by the Secretary of

State.

Having reviewed all the proceedings of the commission, including the

testimony originally submitted to it, the supplemental evidence furnished

in support of the allegations of fraud as to the Weil and La Abra claims,

and the action theretofore taken by the Department of State, Secretary

Evarts referred to the contention that in deciding against opening those

awards diplomatically and reexamining them by a new international

commission, the whole discretion vested in the Executive as a part of the

treaty-making power and under the special provisions of the act of

Congress was exhausted, and that the payments in the cases referred toshould be no longer suspended. He said that a solicitous attention to the

rights of the claimants and the duty of the Executive in the premises had

confirmed him in the opinion that Congress should determine whether 'the

honor of the United States' required any further investigation in these

cases or either of them, and provide the efficient means of such

investigation, if thought necessary.

After stating the considerations which led him to that conclusion, theSecretary proceeded: 'While these considerations led to the conclusion that

these cases ought not to be made the subject of a new international

commission, I was yet of opinion that 'the honor of the United States' was

concerned to inquire whether in these cases, submitted by this government

to the commission, its confidence had been seriously abused, and the

government of Mexico, acting in good faith in accepting a friendly

arbitration, had been subjected to heavy pecuniary imposition by fraud and

perjury in the maintenance of these claims, or either of them, before thecommission. In furtherance, however, of this opinion, it seemed to me

apparent that the Executive discretion under the act of Congress could

extend no further than to withhold further payments on the awards until


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Congress should, by its plenary authority, decide whether such an

investigation should be made, and should provide an adequate procedure

for its conduct, and prescribe the consequences which should follow from

its results. Unless Congress should now make this disposition of the

matter, and furnish thereby definite instructions to the Department to

reserve further payments upon these awards till the conclusion of such

investigation, and to take such further order with the same thereafter asCongress might direct, it would appear to be the duty of the Executive to

accept these awards as no longer open to reconsideration, and proceed in

the payment of the same pro rata with all other awards under the

convention.' Senate Ex. Doc. No. 150, 49th Cong. 2d Sess.

The suggestions of the Secretary having been approved by the President,

the first, second, and third instalments of the award received from Mexico

on account of the claim of the La Abra Company, amounting to$138,565.52, were paid to the representatives of that company. Payments

were subsequently made out of moneys received from Mexico, amounting

to $103,117.54, leaving in the possession of the United States on account

of the award $403,030.08.

After Mr. Arthur became President further distribution of the money

received was suspended because of the negotiation of a treaty between the

United States and Mexico for a re-examination of the Weil and La Abra

cases. This treaty was signed on the 13th day of July, 1882, and wassubmitted to the Senate for its approval, but after some delay it was

rejected by that body.

While that treaty was before the Senate, Key, as assignee of part of the

Weil claim, and the La Abra Company, filed separate petitions in the

supreme court of the District of Columbia for a mandamus upon the

Secretary of State, compelling him to pay to the petitioners their

distributive shares of the sums paid by Mexico in accordance with theterms of the convention of July 4, 1868. In Key's Case the writ asked for

was awarded, while in the La Abra Case the petition was dismissed. The

cases having been brought to this court, the judgment in the Key Case was

reversed with direction to dismiss the petition and the judgment in the La

Abra Case was affirmed. Frelinghuysen v. Key, 110 U. S. 63, 28 L. ed.

71, 3 Sup. Ct. Rep. 462.

Chief Justice Waite, delivering the judgment of this court, said: 'No nationtreats with a citizen of another nation except through his government. The

treaty, when made, represents a compact between the goverments, and

each government holds the other responsible for everything done by their


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respective citizens under it. The citizens of the United States having

claims against Mexico were not parties to this convention. They induced

the United States to assume the responsibility of seeking redress for

injuries they claimed to have sustained by the conduct of Mexico, and as a

means of obtaining such redress the convention was entered into, by

which not only claims of citizens of the United States against Mexico

were to be adjusted and paid, but those of citizens of Mexico against theUnited States as well. By the terms of the compact the individual

claimants could not themselves submit their claims and proofs to the

commission to be passed upon. Only such claims as were presented to the

governments respectively could be 'referred' to the commission, and the

commissioners were not allowed to investigate or decide on any evidence

or information except such as was furnished by or on behalf of the

governments. After all the decisions were made and the business of the

commission concluded, the total amount awarded to the citizens of onecountry was to be deducted from the amount awarded to the citizens of the

other, and the balance only paid in money by the government in favor of

whose citizens the smaller amount was awarded, and this payment was to

be made, not to the citizens, but to their government. Thus, while the

claims of the individual citizens were to be considered by the commission

in determining amounts, the whole purpose of the convention was to

ascertain how much was due from one government to the other on account

of the demands of their respective citizens. As between the United Statesand Mexico, the awards are final and conclusive until set aside by

agreement between the two governments or otherwise. Mexico cannot,

under the terms of the treaty, refuse to make the payments at the times

agreed on if required by the United States. This she does not now seek to

do. Her payments have all been made promptly as they fell due, as far as

these records show.

* * * * * 'As to the right of the United States to treat with Mexico for a

retrial, we entertain no doubt. Each government, when it entered into the

compact under which the awards were made, relied on the honor and good

faith of the other for protection as far as possible against frauds and

impositions by the individual claimants. It was for this reason that all

claims were excluded from the consideration of the commission except

such as should be referred by the several governments, and no evidence in

support of or against a claim was to be submitted except through or by the

governments. The presentation by a citizen of a fraudulent claim or false

testimony for reference to the commission was an imposition on his owngovernment, and if that government afterwards discovered that it had in

this way been made an instrument of wrong towards a friendly power, it

would be, not only its right, but its duty, to repudiate the act and make


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reparation as far as possible for the consequences of its neglect, if any

there had been. International arbitration must always proceed on the

highest principles of national honor and integrity. Claims presented and

evidence submitted to such a tribunal must necessarily bear the impress of

the entire good faith of the government from which they come, and it is

not to be presumed that any government will for a moment allow itself

knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to

be allowed to stand in the way of the national power to do what is right

under all the circumstances. Every citizen who asks the intervention of his

own government against another for the redress of his personal grievances

must necessarily subject himself and his claim to these requirements of

international comity. None of the cases cited by counsel are in opposition

to this. They all relate to the disposition to be made of the proceeds of

international awards after they have passed beyond the reach of thegovernments and into the hands of private parties. The language of the

opinions must be construed in connection with this fact.' Frelinghuysen v.

Key, 110 U. S. 63, 71-73, 28 L. ed. 71-74, 3 Sup. Ct. Rep. 462.

Referring to the act of 1878, and observing that it did not undertake to set

any new limits on the powers of the Executive, the court further said:

'From the beginning to the end it is, in form even, only a request from

Congress to the Executive. This is far from making the President for the

time being a quasi-judicial tribunal to hear Mexico and the implicated

claimants and determine once for all, as between them, whether the

charges which Mexico makes have been judicially established. In our

opinion it would have been just as competent for President Hayes to have

instituted the same inquiry without this request as with it, and his action

with the statute in force is no more binding on his successor than it would

have been without. But his action as reported by him to Congress is not at

all inconsistent with what has since been done by President Arthur. He

was of opinion that the disputed 'cases should be further investigated by

the United States to ascertain whether this government has been made the

means of enforcing against a friendly power claims of our citizens based

upon or exaggerated by fraud,' and, by implication at least, he asked

Congress to provide him the means 'of instituting and furnishing methods

of investigation which can coerce the production of evidence or compel

the examination of parties or witnesses.' He did report officially that he

had 'grave doubt as to the substantial integrity of the Weil claim' and the

'sincerity of the evidence as to the measure of damages insisted upon andaccorded in the case of La Abra Company.' The report of Mr. Evarts

cannot be read without leaving the conviction that if the means had been

afforded, the inquiries which Congress asked for would have been further


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prosecuted. The concluding paragraph of the report is nothing more than a

notification by the President that unless the means are provided, he will

consider that the wishes of Congress have been met, and that he will act

on such evidence as he has been able to obtain without the help he wants.

From the statements in the answer of Secretary Frelinghuysen in the Key

Case, it appears that further evidence has been found, and that President

Arthur, upon this and what was before President Hayes, has becomesatisfied that the contested decisions should be opened and the claims

retried. Consequently, the President, believing that the honor of the

United States demands it, has negotiated a new treaty providing for such a

re-examination of the claims, and submitted it to the Senate for

ratification. Under these circumstances it is, in our opinion, clearly within

the discretion of the President to withhold all further payments to the

relators until the diplomatic negotiations between the two governments on

the subject are finally concluded. That discretion of the ExecutiveDepartment of the government cannot be controlled by the Judiciary. The

United States, when they assumed the responsibility of presenting the

claims of their citizens to Mexico for payment, entered into no contract

obligations with the claimants to assume their frauds and to collect on

their account all that, by their imposition of false testimony, might be

given in the awards of the commission. As between the United States and

the claimants, the honesty of the claims is always open to inquiry for the

purpose of fair dealing with the government against which, through theUnited States, a claim has been made.' Frelinghuysen v. Key, 110 U. S.

63, 74, 76, 28 L. ed. 71, 75, 3 Sup. Ct. Rep. 462.

After the rejection of the treaty negotiated in 1882, President Cleveland in

1886 sent a message to the Senate calling attention to the act of 1878, and

asking consideration of the status of the Weil and La Abra claims. By that

message Congress was in substance notified that if it did not take some

action in the matter the President would proceed to distribute the funds

received from Mexico under the award and remaining in the hands of the

United States. The matter having been referred to the Senate committee

on foreign relations, it recommended the passage of a bill providing for a

reinvestigation of those claims. The committee's report on the subject thus

concluded: 'This brief r esum e of the correspondence between the two

governments shows that Mexico, while observing, in good faith, all her

obligations under the convention, has earnestly and constantly urged upon

the United States that these claims were fraudulent. This appeal to the

spirit of justice cannot be ignored, but should be met by a frank and openexamination by our own courts of the facts presented by Mexico. These

claimants have no vested rights growing out of these claims which entitle

them to come between Mexico and the United States, and to demand the


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payment of any part of these awards that are the outgrowth of fraud and

perjury.' Senate Doc. Report No. 2705, p. v., 50th Cong. 2d Sess.

No action having been taken by Congress, the subject was again

mentioned in a message sent by the President to the Senate on the 5th of

March, 1888, in response to resolutions of that body. The message was

accompanied by a report from Mr. Bayard, Secretary of State, in whichreference was made to the action of his predecessor. He said: 'It is fair to

assume that the rejection by the Senate of the treaty signed by Mr.

Frelinghuysen, for an international rehearing of the awards, was in no

sense an expression of opinion adverse to their investigation, which Mr.

Evarts had recommended. It is rather to be regarded as an approval of the

opinion which he also expressed, that the investigation should, under the

circumstances, be made by this government for itself, as a matter affecting

solely its own honor. It is a remarkable fact that whenever, since thedistribution of the Mexican fund was commenced, the deliberate judgment

of the official authorized by Congress to make such distribution has been

recorded upon the two awards in question, it has uniformly been to the

effect that the evidences that the United States, in presenting the claims,

had been made the victim of fraudulent imposition were of such a

character as to require investigation by a competent tribunal, possessing

appropriate powers for that purpose. . . . The sole question now presented

for the decision of this government is whether the United States will

enforce an award upon which the gravest doubts have been cast by its own

officers in opinions rendered under express legislative direction, until

some competent investigation shall have shown such doubts to be

unfounded, or until that branch of the government competent to provide

for such investigation shall have decided that there is no ground therefor.'

Senate Doc. Report No. 2705, p. v., 50th Cong. 2d Sess. The Secretary

recommended that Congress take action providing expressly for the

reference of the Weil and La Abra claims to the court of claims or such

other court as was deemed proper, in order that a competent investigation

of the charges of fraud might be made.

Pending the consideration of this matter in the Senate the committee on

foreign relations examined the evidence alleged to have been discovered

by Mexico after the award in question, especially certain letters and copies

of letters of the officers and agents of the La Abra Company contained in

a letter-impression book that was not before the commission. The

committee in their report to the Senate on March 1, 1889, among other things said: 'The main allegation in the petition of the La Abra Company

presented to the mixed commission, to wit, that the company was

dispossessed of its property by the forcible interference of the Mexican


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authorities, is disproved and shown to have been wholly false, and this

mainly by the correspondence of the company's own officers and agents;

and it appears by the testimony taken by the committee that the

abandonment of the property and the failure of the company were wholly

due to the poverty of the mines and the consequent financial

embarrassment of the company.' After reviewing, in the light of precedent

and upon principle, the question of the power of Congress to order a re-examination of the La Abra claim, the committee concluded its report to

the Senate: 'It thus appears that the power of Congress to reopen the La

Abra award, and to direct a suit to be brought to judicially determine

whether or not it was procured by fraud, has been affirmed by successive

Secretaries of State, assumed by Congress in the passage of the act of June

18, 1878, expressly declared by committees of both houses of Congress,

and substantially held to exist by the highest judicial tribunal of this

government.' Senate Doc. Report No. 2705, pp. ix., xviii., 50th Cong. 2dSess.

Reference should here be made to United States ex rel. Boynton v. Blaine,

139 U. S. 306, 323-326, 35 L. ed. 183, 189, 190, 11 Sup. Ct. Rep. 607, as

announcing principles that affect certain questions arising in the present

litigation. That case was commenced on the 23d day of November, 1889,

in the supreme court of the District of Columbia. Boynton, the relator, as

assignee of Weil, sought to compel the Secretary of State to pay certain

moneys received under the award made pursuant to the convention of

1868. The mandamus asked for was refused and the petition of Boynton

was dismissed. That judgment was affirmed by this court. The present

Chief Justice, delivering the unanimous judgment of the court, declared its

adherence to the principles announced in Frelinghuysen v. Key, above

cited, and among other things said: 'As between nations, the proprietary

right in respect to those things belonging to private individuals or bodies

corporate within a nation's territorial limits is absolute, and the rights of

Weil cannot be regarded as distinct from those of his government. The

government assumed the responsibility of presenting his claim, and made

it its own in seeking redress in respect to it. Under this convention it was

the balance that was to be paid, after deducting from what was found in

favor of one government that which was found in favor of the other. So

that the moneys paid in liquidation of that balance belonged to the United

States, to be increased by appropriation to the extent of the amounts

allowed Mexico, and the aggregate to be distributed to the claimants as

might be provided.' Again: 'Congress, in furnishing the auxiliarylegislation needed to carry the results of the convention under

consideration into effect, requested the President to so far investigate

certain charges of fraud as to determine whether a retrial ought to be had.


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This inquiry might have resulted in reopening the awards as between the

two nations, or in such re-examination in a domestic forum as would

demonstrate whether the honor of the United States required a different

disposition of the particular amounts in question. The valdity and

conclusiveness of the awards remained unimpugned so long as they were

permitted to stand, and the principle of res judicata could not be invoked

against the United States by individual claimants while the controversyraised as to them remained in fieri. In Frelinghuysen v. Key, while

conceding the essential value of international arbitration to be dependent

upon the certainty and finality of the decision, the court adjudged that this

government need not therefore close its doors against an investigation into

the question whether its influence has been lent in favor of a fraudulent

claim. It was held that no applicable rule was so rigid as not to be

sufficiently flexible to do justice, and that the extent and character of any

obligation to individuals, growing out of a treaty, an award, and the receiptof money thereon, were necessarily subject to such modification as

circumstances might require. So long as the political branch of the

government had not lost its control over the subject-matter by final action,

the claimant was not in a position, as between himself and his

government, to insist on the conclusiveness of the award as to him. And

while it is true that for the disposition of the case of Frelinghuysen v. Key,

it was sufficient that it appeared that diplomatic negotiations were

pending, which, as the court demonstrated, the act of 1878 in no manner circumscribed, it does not follow that the political department of the

government lost its control because those negotiations failed. On the

contrary, that control was expressly reserved, for it was made the duty of

the President, if of opinion that the cases named should be retried, to

withhold payment until such retrial could be had in an international

tribunal, if the two governments so agreed, or in a domestic tribunal if

Congress so directed, and, at all events, until Congress should otherwise

direct. The fact that a difference of view as to whether the retrial should be

international or domestic may have arisen and led to delay, or that such

difference may have existed on the merits, does not affect the conclusion.

The inaction by Congress is not equivalent to a direction by Congress.

The political department has not parted with its power over the matter, and

the intervention of the judicial department cannot now be invoked.'

This brings us in the orderly statement of the history of this dispute to the

act of December 28, 1892, amending and enlarging the above act of June

18, 1878. 27 Stat. at L. 409, chap. 14.

That statute recited that the Secretary of State, after investigating the

charge of fraud presented by the Mexican government as to the case of the


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La Abra Silver Mining Company, had reported that the honor of the

United States required that case to be further investigated by the United

States to ascertain whether this government had enforced against a

friendly power claims of its citizens based upon or exaggerated by fraud,

but that the executive branch of the government 'was not furnished with

the means of instituting and pursuing methods of investigation which

could coerce the production of evidence or compel the examination of parties and witnesses;' that 'the authority for such an investigation must

proceed from Congress;' and that the President of the United States had

transmitted to Congress the recommendation of the Secretary of State that

the case be referred to the court of claims, or such other court as might be

deemed proper, in order that the charge of fraud made in relation to this

claim might be fully investigated. It was therefore enacted:

'That in further execution of the purpose of said act, the Attorney Generalof the United States be, and he is hereby, authorized and directed to bring

a suit or suits in the name of the United States in the court of claims

against La Abra Silver Mining Company, its successors and assigns, and

all persons making any claim to the award or any part thereof in this act

mentioned, to determine whether the award made by the United States

and Mexican mixed commission in respect to the claim of the said La

Abra Silver Mining Company was obtained, as to the whole sum included

therein, or as to any part thereof, by fraud effectuated by means of false

swearing or other false and fraudulent practices on the part of the said La

Abra Silver Mining Company, or its agents, attorneys, or assigns; and, in

case it be so determined, to bar and foreclose all claim in law or equity on

the part of said La Abra Silver Mining Company, its legal representatives

or assigns, to the money, or any such part thereof, received from the

Republic of Mexico for or on account of such award: and any defendant to

such suit who cannot be found in the District of Columbia shall be notified

and required to appear in such suit by publication as the court may direct,

in accordance with law, as applicable to cases in equity.

'Sec. 2. That full jurisdiction is hereby conferred on the court of claims to

hear and determine such suit and to make all interlocutory and final

dcerees therein, as the evidence may warrant, according to the principles

of equity and justice, and to enforce the same by injunction or any proper

final process, and in all respects to proceed in said cause according to law

and the rules of said court, so far as the same are applicable. And the

Secretary of State shall certify to the said court copies of all proofsadmitted by the said mixed commission on the original trial of said claim,

and the said court shall receive and consider the same in connection with

such competent evidence as may be offered by either party to said suit.


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'Sec. 3. That an appeal from any final decision in such cause to the

Supreme Court of the United States may be taken by either party within

ninety days from the rendition of such final decree, under the rules of

practice which govern appeals from said court; and the Supreme Court of

the United States is hereby authorized to take jurisdiction thereof and

decide the same.

'Sec. 4. That in case it shall be finally adjudged in said cause that the

award made by said mixed commission, so far as it relates to the claim of

La Abra Silver Mining Company, was obtained through fraud effectuated

by means of false swearing, or other false and fraudulent practices of said

company or its assigns, or by their procurement, and that the said La Abra

Silver Mining Company, its legal representatives or assigns, be barred and

foreclosed of all claim to the money or any part thereof so paid by the

Republic of Mexico for or on account of such award, the President of theUnited States is hereby authorized to return to said government any

money paid by the government of Mexico, on account of said award,

remaining in the custody of the United States, that has not been heretofore

distributed to said La Abra Mining Company or its successors and assigns,

which such court shall decide that such persons are not entitled, in justice

and equity, to receive out of said fund.

1 'Sec. 5. That, during the pendency of said suit and until the same is decided, it

shall not be lawful for the Secretary of State to make any further payments out

of said fund, on account of said award, to La Abra Silver Mining Company, or

its legal representatives, attorneys, or assigns; and in case it shall be finally

adjudged in said cause in either the court of claims or in the Supreme Court of

the United States that the award made by said mixed commission, so far as it

relates to the claim of La Abra Silver Mining Company, or any definable and

severable part thereof, was not obtained through fraud as aforesaid, then the

Secretary of State shall proceed to distribute so much of the said award as shall

be found not so obtained through fraud, or the proceeds thereof remaining for

distribution, if any, to the persons entitled thereto.' 27 Stat. at L. 409, chap. 14.

2 Pursuant to the provisions of that act the Attorney General brought the present

suit in the court of claims. The defendants are the La Abra Company and

numerous individuals who assert some interest in the award made in respect of

its claim against Mexico. The relief asked by the United States is indicated bythe following paragraph in the bill:

3 'Your orator further shows, that by reason of the premises a controversy has


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arisen between your orator and the defendants hereinbefore named, the said

defendants claiming that it is the duty of your orator to pay over to them the

sums by them, the said defendants, claimed respectively from the proceeds of

said award now in the possession of your orator, and your orator claiming that it

is the right and duty of your orator to have the facts relating to said claim and

award inquired of by your honorable court, and if it shall be adjudged by your

honorable court that the said award was obtained through fraud effectuated bymeans of false swearing or other false and fraudulent practices on the part of

the said defendant La Abra Silver Mining Company, or its agents, attorneys, or

assigns, to return the proceeds of said award to the said Republic of Mexico;

that the said defendants have made persistent demands upon the Department of

State and upon the Congress of your orator for the payment to them of said

moneys, and that some of the said defendants have brought suits in the courts of

your orator to compel such payment, and that, unless restrained by the judgment

and decree of this honorable court, the said defendants will continue to harassand annoy your orator with such demands and suits. . . . And that the said

defendants and each and every of them may, by the decree of this honorable

court, be forever restrained and enjoined from setting up any claim to any part

of said award or of the moneys now, as aforesaid, in possession of your orator.

And that the said award on the claim of the said defendant La Abra Silver

Mining Company may, by the decree of this honorable court, be declared to

have been wholly obtained by meand of false swearing and other false and

fraudulent practices on the part of said defendant company, its agents,attorneys, and assigns. And that your orator may have such other and further

relief as the nature of your orator's case may require and as may be agreeable to

equity and good conscience.'

4 The La Abra Company and other defendants demurred to the bill on the

following grounds:

5 That by the Constitution and laws of the United States the subject-matter of thissuit was within the final and exclusive control of the Executive Department of

the government of the United States, and not within the jurisdiction of any

judicial tribunal;

6 That the questions whether the award of the Commission was obtained by fraud

and whether the money received under it and remaining undistributed by the

Secretary of State should be returned by the President of the United States

could not properly be determined by any municipal court of either of thesovereign parties to the treaty of 1868, but were questions of a diplomatic or

political nature determinable only by the Executive Department of the

government;


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7 That the United States had not such an interest in the matters and things alleded

in the bill as entitled it to maintain this suit or to have the relief asked;

8That the government of Mexico was the party pecuniarily interested in this suit,

and that, by failing to institute and prosecute suit against the alleged

wrongdoers in the courts of the United States for the annulment of the award

and the recovery of the moneys paid on account thereof, it had been guilty of laches and had forfeited all right to relief in equity; consequently, the United

States was not entitled to demand such relief for the benefit of or in the interest

of Mexico;

9 That a mixed commission created and acting under and by virtue of such a

treaty as that of July 4, 1868, between the United States and Mexico, was

recognized by the law of nations and by the Constitution and laws of the United

States and was in fact and law a court of exclusive and final jurisdiction, and itsaward could not be set aside, reopened, or vacated by a municipal court of the

United States, either in virtue of an act of Congress or otherwise, and that

Congress could not grant a new trial in respect of matters so finally determined

and concluded by international arbitration under such a treaty; but, on the

contrary, such an award could, on the part of the United States, be set aside,

vacated, or reopened only through its treaty-making power; and that the

question presented by the bill, whether the award should be reopened or not on

the grounds alleged, having been submitted to the treatymaking power and by itdecided in the negative, was res judicata;

10 That it appeared on the face of the bill that the question whether the award in

favor of the La Abra Company was obtained in whole or part by fraud

effectuated by means of false swearing or other corrupt and fraudulent practices

was substantially the same question that was tried by the commissioners, such

fraud and fraudulent practices having been charged by the Mexican agent and

commissioner at the trial; and that that question, on the disagreement of the twocommissioners in respect of the integrity of the witnesses and the credibility

and weight of the evidence for and against the claim of the company, was

referred to the umpire for decision, and, having been decided by him, was res

judicata and could not be re-examined or redetermined by this court;

11 That the act of Congress under which the suit was prosecuted was

unconstitutional and inoperative on the further ground that it assumed to direct,

control, and bind the courts in determining the questions submitted for final

adjudication to receive evidence and apply legal principles that were erroneous

and wholly inadmissible according to law as administered in the courts of the

United States in like cases, and to prescribe to the court what weight and effect


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should be given to the evidence and how the court should reach the conclusion

that the award was obtained in whole or in part through fraud;

12That inasmuch and because the questions presented by the bill were of a

political and diplomatic nature and not justiciable or fit and proper to be

considered and finally determined by a municipal court, Congress could not

impose upon the court of claims, or upon the Supreme Court of the UnitedStates, or upon the judges thereof, the trial and determination of those

questions;

13 That the act of Congress in question was inoperative and void on the further

ground that it was never approved by the President of the United States as

required by law, the only alleged approval it ever received being on the 28th of

December, A. D. 1892, when Congress was not in session, both houses of

Congress having adjoined on the 22d of December, A. D. 1892, to the 4th of January, A. D. 1893; and,

14 That the bill did not state facts sufficient to constitute a cause of action or to

authorize the granting of any relief.

15 The demurrer to the bill, so far as it involved the jurisdiction of the court of

claims and the charges of fraud, was overruled, the opinion of the court beingdelivered by Judge Weldon. 29 Ct. Cl. 432, 484. The question whether the act

of December 28th, 1892, was so approved by the President as to become a law

was determined in favor of the United States, upon the grounds stated in the

opinion of the court previously delivered by Judge Nott, now chief justice of

that court, in United States v. Weil , 29 Ct. Cl. 523.

16 The case having been prepared on the merits, the court of claims upon final

hearing found that the award made by the commission on the claim of the LaAbra Company 'was obtained as to the whole sum included therein by fraud

effectuated by means of false swearing and other false and fraudulent practices

on the part of said company and its agents;' and it was adjudged that all claims

in law and equity on the part of the company, its legal representatives and

assigns, be forever barred and foreclosed in respect of the money received from

the Republic of Mexico for or on account of such award. 32 Ct. Cl. 462, 520,

521.

17 An elaborate opinion of the court of claims, delivered by Judge Weldon, states

fully the grounds on which the decree was based. That opinion concludes: 'The

court, upon an examination of all the testimony, excluding such portions of it as


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in the opinion of the court are not competent, determines as a conclusion of fact

that the La Abra Silver Mining Company did not abandon its mines in Mexico

because of the interference of the people of Mexico and the public authorities

of the Mexican government, or either, but on the contrary that it abandoned its

mines because they were unproductive and for the want of money to operate

and work the same, and that the award made by the United States and the

Mexican mixed commission in respect to the claim of the said La Abra Silver Mining Company was obtained as to the whole sum included therein by fraud

effectuated by means of false swearing and other fraudulent practices upon the

part of said company and its agents, and a decree will be entered barring and

foreclosing all claim in law and equity on the part of said company, or its

agents, attorneys, and assigns, to the money received from the Republic of

Mexico for or on account of such award. Having decided that the company was

not compelled to abandon its mines because of the acts of the people of

Mexico, unrestrained by the Mexican government, and that it was notcompelled to abandon the mines because of the unlawful interference of the

Mexican authorities with the property and business of the company, it is not

necessary to consider the question of the value of the property of the company

at the time of the abandonment.'

18 Chief Justice Nott dissented in part from the judgment. He was of opinion that

the first three items in the award of the umpire, above set forth, should stand,

but that the fourth item was fraudulently exaggerated and should be reduced to$420.09, and the fifth, $100,000, rejected altogether as having been utterly

overthrown by the evidence. 32 Ct. Cl. 521, 533.

19 From the judgment of the court of claims the present appeal was prosecuted.

20 Messrs. J. M. Wilson, Crammond Kennedy, John C. Fay, and E. I. Renick for

appellant.

21 Messrs. William A. Maury and Solicitor General Richards for United States.

22 [Argument of Counsel from pages 448-450 intentionally omitted]

23 Mr. Justice Harlan delivered the opinion of the court:

24 In the light of this history of the claim of the La Abra Company we proceed tothe consideration of such of the principal questions presented in argument as are

essential to the disposition of the case.


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25 I. If, as insisted by the appellants, the above act of December 28, 1892, was not

so approved by the President as to become under the Constitution a law, it

would be unnecessary to consider any other question raised by the pleadings;

for that act is the only basis of jurisdiction in the court of claims to render a

judgment that would be conclusive between the parties and which could be

reviewed by this court. We must therefore first consider whether that act is

liable to the constitutional objection just stated.

26 The ground of this contention is that having met in regular session at the time

appointed by law, the first Monday of December, 1892, and having on the 22d

day of that month (two days after the presentation of the bill to the President)

by the joint action of the two Houses taken a recess to a named day, January 4,

1893, Congress was not actually sitting when the President, on the 28th day of

December, 1892, by signing it, formally approved the act in question. The

proposition, plainly stated, is that a bill passed by Congress and duly presented

to the President does not become a law if his approval be given on a day when

Congress is in recess. This implies that the constitutional power of the

President to approve a bill so as to make it a law is absolutely suspended while

Congress is in recess for a fixed time. It would follow from this that if both

Houses of Congress by their joint or separate action were in recess from some

Friday until the succeeding Monday, the President could not exercise that

power on the intervening Saturday. Indeed, according to the argument of

counsel the President could not effectively approve a bill on any day when oneof the Houses, by its own separate action, was legally in recess for that day in

order that necessary repairs be made in the room in which its sessions were

being held. Yet many public acts and joint resolutions of great importance,

together with many private acts, have been treated as valid and enforceable,

which were approved by the President during the recesses of Congress

covering the Christmas holidays. In the margin will be found a reference to

some of the more recent of those statutes.

27 Do the words of the Constitution, reasonably interpreted, sustain the views

advanced for appellant?

That instrument provides:

28 'The Congress shall assemble at least once in every year, and such meeting

shall be on the first Monday in December, unless they shall by law appoint adifferent day.' Art. I. § 4.

29 'Neither House, during the session of Congress, shall, without the consent of


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the other, adjourn for more than three days, nor to any other place than that in

which the two Houses shall be sitting.' Art. I. § 5.

30 'Every bill which shall have passed the House of Representatives and the

Senate shall, before it becomes a law, be presented to the President of the

United States; if he approves, he shall sign it, but if not, he shall return it, with

his objections to that House in which it shall have originated, who shall enter the objections at large on the journal, and proceed to consider it. If after such

reconsideration two thirds of that House shall agree to pass the bill, it shall be

sent, together with the objections, to the other House, by which it shall likewise

be reconsidered, and if approved by two thirds of that House, it shall become a

law. But in all such cases the votes of both Houses shall be determined by yeas

and nays, and the names of the persons voting for and against the bill shall be

entered on the journal of each House respectively. If any bill shall not be

returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had

signed it, unless the Congress by their adjournment prevent its return, in which

case it shall not be a law.' Art. I. § 7.

31 'Every order, resolution, or vote to which the concurrence of the Senate and

House of Representatives may be necessary (except on a question of

adjournment) shall be presented to the President of the United States; and

before the same shall take effect, shall be approved by him, or beingdisapproved by him, shall be repassed by two thirds of the Senate and House of

Representatives, according to the rules and limitations prescribed in the case of

a bill.' Art. I. § 8.

32 It is said that the approval by the President of a bill passed by Congress is not

strictly an executive function, but is legislative in its nature; and this view, it is

argued, conclusively shows that his approval can legally occur only on a day

when both Houses are actually sitting in the performance of legislativefunctions. Undoubtedly the President when approving bills passed by Congress

may be said to participate in the enactment of laws which the Constitution

requires him to execute. But that consideration does not determine the question

before us. As the Constitution, while authorizing the President to perform

certain functions of a limited number that are legislative in their general nature,

does not restrict the exercise of those functions to the particular days on which

the two Houses of Congress are actually sitting in the transaction of public

business, the court cannot impose such a restriction upon the Executive. It ismade his duty by the Constitution to examine and act upon every bill passed by

Congress. The time within which he must approve or disapprove a bill is

prescribed. If he approve a bill, it is made his duty to sign it. The Constitution


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is silent as to the time of his signing, except that his approval of a bill duly

presented to him if the bill is to become a law merely by virtue of such approval

must be manifested by his signature within ten days, Sundays excepted, after

the bill has been presented to him. It necessarily results that a bill when so

signed becomes from that moment a law. But in order that his refusal or failure

to act may not defeat the will of the people, as expressed by Congress, if a bill

be not approved and be not returned to the House in which it originated withinthat time, it becomes a law in like manner as if it had been signed by him. We

perceive nothing in these constitutional provisions making the approval of a

bill by the President a nullity if such approval occurs while the two Houses of

Congress are in recess for a named time. After a bill has been presented to the

President, no further action is required by Congress in respect of that bill,

unless it be disapproved by him and within the time prescribed by the

Constitution be returned for reconsideration. It has properly been the practice of

the President to inform Congress by message of his approval of bills, so thatthe fact may be recorded. But the essential thing to be done in order that a bill

may become a law by the approval of the President is that it be signed within

the prescribed time after being presented to him. That being done, and as soon

as done, whether Congress is informed or not by message from the President of

the fact of his approval of it, the bill becomes a law, and is delivered to the

Secretary of State as required by law.

33 Much of the argument of counsel seems to rest upon the provision in relation tothe final adjournment of Congress for the session whereby the President is

prevented from returning, within the period prescribed by the Constitution, a

bill that he disapproves and is unwilling to sign. But the Constitution places the

approval and disapproval of bills, as to their becoming laws, upon a different

basis. If the President does not approve a bill, he is required within a named

time to send it back for consideration. But if by its action, after the presentation

of a bill to the President during the time given him by the Constitution for an

examination of its provisions and for approving it by his signature, Congress puts it out of his power to return it, not approved, within that time to the House

in which it originated, then the bill falls, and does not become a law.

34 Whether the President can sign a bill after the final adjournment of Congress

for the session is a question not arising in this case, and has not been considered

or decided by us. We adjudge—and touching this branch of the case adjudge

nothing more that the act of 1892 having been presented to the President while

Congress was sitting, and having been signed by him when Congress was inrecess for a specified time, but within ten days, Sundays excepted, after it was

so presented to him, was effectively approved, and immediately became a law,

unless its provisions are repugnant to the Constitution.


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35 II. It is said that the present proceeding based on the act of 1892 is not a 'case'

within the meaning of that clause of the Constitution authority. Art. III. § 2.

This article, as has the United States shall extend to all cases in law and equity

arising under that instrument, the laws of the United States, or treaties made or

which shall be made under their authority. Art. III. § 2. This article, as has been

adjudged, does not extend the judicial power to every violation of the

Constitution that may possibly take place, but only 'to 'a case in law or equity,'in which a right, under such law, is asserted in a court of justice. If the question

cannot be brought into a court, then there is no case in law or equity, and no

jurisdiction is given by the words of the article. But if, in any controversy

depending in a court, the cause should depend on the validity of such a law,

that would be a case arising under the Constitution, to which the judicial power

of the United States would extend.' Cohen v. Virginia, 6 Wheat. 264, 405, 5 L.

ed. 257, 291. In the same case, Chief Justice Marshall declared a suit to be the

prosecution by a party of some claim, demand, or request in a court of justicefor the purpose of being put in possession of a right claimed by him and of

which he was deprived.

36 Referring to the provision defining the judicial power of the United States, the

court in a subsequent case said: 'This clause enables the judicial department to

receive jurisdiction to the full extent of the Constitution, laws, and treaties of

the United States, when any question respecting them shall assume such a form

that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights

in the form prescribed by law. It then becomes a case, and the Constitution

declares that the judicial power shall extend to all cases arising under the

Constitution, laws, and treaties of the United States.' Osborn v. Bank of United

States, 9 Wheat. 738, 819, 6 L. ed. 204, 223. In Den ex dem. Murray v.

Hoboken Land & Improv. Co. 18 How. 272, 284, 15 L. ed. 372, 377, this court

said that Congress can neither 'withdraw from judicial cognizance any matter

which, from its nature, is the subject of a suit at the common law or in equity or admiralty; nor, on the other hand, can it bring under the judicial power a matter

which, from its nature, is not a subject for judicial determination.' But in the

same case it was observed by Mr. Justice Curtis, speaking for the court, that

'there are matters involving public rights which may be presented in such form

that the judicial power is capable of acting on them, and which are susceptible

of judicial determination, but which Congress may or may not bring within the

cognizance of the courts of the United States, as it may deem proper.' Of like

import was the judgment in Smith v. Adams, 130 U. S. 167, 173, 32 L. ed. 895,897, 9 Sup. Ct. Rep. 566, in which the court said that the terms 'cases' and

'controversies' in the Constitution embraced 'the claims or contentions of

litigants brought before the courts for adjudication by regular proceedings


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established for the protection or enforcement of rights, or the prevention,

redress, or punishment of wrongs.'

37 The principles announced in the above cases are illustrated by the opinion

prepared by Chief Justice Taney for the case of Gordon v. United States, 2

Wall. 561, 17 L. ed. 921, and printed in 117 U. S. 697, appx. That case was

brought to this court from the court of claims, and related to a demand assertedagainst the United States. The principal question was whether this court had

jurisdiction to review the final order made in the court below. The chief justice

died before the case was decided, and the opinion prepared by him in recess

was not formally accepted. But if the court approved his views, as it

undoubtedly did, the appeal was dismissed upon the ground that Congress

could not authorize or require this court to express an opinion on a case in

which its judicial power could not be exercised, and when its judgment would

not be final and conclusive upon the rights of the parties. 'The award of execution,' Chief Justice Taney said, 'is a part, and an essential part, of every

judgment passed by a court exercising judicial power. It is no judgment, in the

legal sense of the term, without it. Without such an award the judgment would

be inoperative and nugatory, leaving the aggrieved party without a remedy. It

would be merely an opinion which would remain a dead letter, and without any

operation upon the rights of the parties, unless Congress should at some future

time sanction it and pass a law authorizing the court to carry its opinion into

effect. Such is not the judicial power confided to this court in the exercise of itsappellate jurisdiction; yet it is the whole power that the court is allowed to

exercise under this act of Congress.' In a more recent case this court dismissed

an appeal from a final order made in the court of claims in virtue of a particular

statute, observing: 'Such a finding is not made obligatory on the department to

which it is reported—certainly not so in terms, and not so, as we think, by any

necessary implication. We regard the function of the court of claims, in such a

case, as ancillary and advisory only. The finding or conclusion reached by that

court is not enforceable by any process of execution issuing from the court, nor is it made by the statute the final and indisputable basis of action, either by the

department or by Congress.' Re Sanborn, 148 U. S. 222, 226, 37 L. ed. 429,

431, 13 Sup. Ct. Rep. 577; Interstate Commerce Commission v. Brimson, 154

U. S. 447, 483, 38 L. ed. 1047, 1059, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep.

1125.

38 Under the principles established in the cases above cited, the objections urged

against the jurisdiction of the court of claims and of this court cannot bemaintained, if the present proceeding involves a right which in its nature is

susceptible of judicial determination, and if the determination of it by the court

of claims and by this court is not simply ancillary or advisory but is the final


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and indisputable basis of action by the parties.

39 The money in the hands of the Secretary of State was paid to the United States

by Mexico pursuant to the award of the commission. That tribunal dealt only

with the two governments, had no relations with claimants, and could take

cognizance only of claims presented by or through the respective governments.

No claimant, individual or corporate, was entitled to present any demand or proofs directly to the commission. No evidence could be considered except

such as was furnished by or on behalf of the respective governments. While the

claims of individual citizens presented by their respective governments were to

be considered by the commission in determining amounts 'the whole purpose of

the convention was to ascertain how much was due from one government to the

other on account of the demands of their respective citizens.' And 'each

government, when it entered into the compact under which the awards were

made, relied on the honor and good faith of the other for protection as far as possible against frauds and impositions by the individual claimants.'

Frelinghuysen v. Key, above cited. As between the United States and Mexico,

indeed as between the United States and American claimants, the money

received from Mexico under the award of the commission was in strict law the

property of the United States, and no claimant could assert or enforce any

interest in it so long as the government legally withheld it from distribution.

40 When the La Abra Company asked the intervention of the United States it didso on the condition imposed by the principles of comity recognized by all

civilized nations, that it would act in entire good faith, and not put the

government whose aid it sought in the attitude of asserting against the Mexican

Republic a fraudulent or fictitious claim; consequently the United States, under

its duty to that Republic, was required to withhold any sum awarded and paid

on account of the company's claim, if it appeared that such claim was of that

character. As between the United States and the company, the honesty or

genuineness of the latter's claim was open to inquiry in some appropriate modefor the purpose of fair dealing with the government against which such claim

was made through the United States. We so adjudged in the Key Case. The

United States assumed the responsibility of presenting the La Abra claim and

made it its own in seeking redress from the Mexican Republic. But from such

action on its part no contract obligations arose with the La Abra Company 'to

assume their frauds and to collect on their account all that, by their imposition

of false testimony, might be given in the awards of the commission.' United

States ex rel. Boynton v. Blaine, above cited.

41 These considerations make it clear that the act of 1892 is not liable to the

objection that it subjected to judicial determination a matter committed by the


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Constitution to the exclusive control of the President. The subject was one in

which Congress had an interest, and in repect to which it could give directions

by means of a legislative enactment. The question for the determination of

which the present suit was directed to be instituted was whether the award

made by the commission in respect to the claim of the La Abra Company was

obtained as to the whole sum included therein or as to any part thereof, by fraud

effectuated by means of false swearing or other false and fraudulent practiceson the part of the company, or its agents, attorneys, or assigns. It cannot, we

think, be seriously disputed that the question whether fraud has or has not been

committed in presenting or prosecuting a demand or claim before a tribunal

having authority to allow or disallow it is peculiarly judicial in its nature, and

that in ascertaining the facts material in such an inquiry no means are so

effectual as those employed by or in a court of justice. The executive branch of

the government recognized the inadequacy for such an investigation of any

means it possessed, and declared that Congress by its 'plenary authority' oughtnot only to decide whether such an investigation should be made, but provide

an adequate procedure for its conduct, and prescribe the consequences to

follow therefrom. The suggestion that the question of fraud be committed to the

determination of a judicial tribunal first came from the executive branch of the

government. Undoubtedly Congress, having in view the honor of the

government and the relations of this country with Mexico, could have

determined the whole question of fraud for itself, and by a statute approved by

the President, or which being disapproved by him was passed by the requisiteconstitutional vote, have directed the return to Mexico, the other party to the

award, of such moneys as had been paid into the hands of the Secretary of

State. It is also clear that in the absence of any statute suspending the

distribution of such moneys, the President could have ignored the charges of

fraud and ordered the distribution to proceed according to the terms of the

treaty and the award. But it does not follow that Congress was without power,

no distribution having been made, to control the whole matter by plenary

legislation.

42 It has been adjudged that Congress by legislation, and so far as the people and

authorities of the United States are concerned, could abrogate a treaty made

between this country and another country which had been negotiated by the

President and approved by the Senate. Head Money Cases, 112 U. S. 580, k99,

sub nom. Edye. v. Rebertson, 28 L. 580, 599, sub nom. Edye v. Robertson, 28

L. v. Robertson, 124 U. S. 190, 194, 31 L. ed. 386, 388, 8 Sup. Ct. Rep. 456;

Chinese Exclusion Case, 130 U. S. 581, 600, sub nom. Chae Chan Ping v.United States, 32 L. ed. 1068, 1073, 9 Sup. Ct. Rep. 623; Fong Yue Ting v.

United States, 149 U. S. 698, 721, 37 L. ed. 905, 915, 13 Sup. Ct. Rep. 1016. It

is therefore difficult to perceive any ground upon which to question its power to


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make the distribution of moneys in the hands of the Secretary of State

representing in that matter the United States and not simply the President—

depend upon the result of a suit by which the United States would be bound and

in which the claimants to the fund in question could be heard as parties, and

which was to be brought in a court of the United States by its authority, for the

purpose of determining whether the La Abra Company, its agents or assigns,

had been guilty of fraud in the matter of the claim that it procured to be presented to the commission. The act of 1892 is to be taken as a recognition, so

far as the United States is concerned, of the legal right of the company to

receive the moneys in question unless it appeared upon judicial investigation

that the United States was entitled, by reason of fraud practised in the interest

of that corporation, to withhold such moneys from it. Here, then, is a matter

subjected to judicial investigation in respect of which the parties assert rights —

the United States insisting upon its right under the principles of international

comity to withhold moneys received by it under a treaty on account of a certainclaim presented through it before the commission organized under that treaty in

the belief, superinduced by the claimant, that it was an honest demand; the

claimant insisting upon its absolute legal right under the treaty and the award of

the commission, independently of any question of fraud, to receive the money,

and disputing the right of the United States upon any ground to withhold the

sum awarded. We entertain no doubt these rights are susceptible of judicial

determination within the meaning of the adjudged cases relating to the judicial

power of the courts of the United States as distinguished from the powerscommitted to the executive branch of the government.

43 It remains, in our consideration of the question of jurisdiction, to inquire

whether the judgment authorized by the act of 1892 to be rendered would be a

final, conclusive determination, as between the United States and the

defendants, of the rights claimed by them respectively, or only ancillary or

advisory. In our opinion the act of Congress authorized a final judgment of the

former character, and therefore the judgment of the court of claims isreviewable by this court in the exercise of its appellate judicial power. If our

judgment should be one of affirmance then the La Abra Company, its legal

representatives or assigns, are barred of all claim, legal or equitable, to the

money received by the United States from the Republic of Mexico on account

of the award of the commission. Such a determination would rest upon the

broad ground that the United States in its efforts to protect the alleged rights of

an American corporation had been the victim of fraud upon the part of that

corporation, its agents or assigns, and was in law relieved from anyresponsibility to that corporation touching the claim in question or the moneys

received on account of it. If, on the other hand, this court should find that the

charges of fraud were not sustained or were disproved, and reverse the decree


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of the court of claims, then it would become the absolute legal duty of the

Secretary of State to proceed in the distribution of the moneys in his hands a

according to the terms of the award. It was competent for Congress by statute

to impose that duty upon him, and he could not refuse to obey the mandate of

the law.

44 Much was said in argument about the interference by the act of 1892 with thedischarge by the President of his constitutional functions in connection with

matters involved in the relations between this country and the Republic of

Mexico. For reasons already given this contention cannot be sustained. It is

without support in anything done or said by the eminent jurists who have

presided over the Department of State since the controversy arose as to the

integrity of claim made by the La Abra Company. On the contrary, those

officers have uniformly insisted that the authority of Congress was plenary to

determine whether the award in respect of those claims was procured by fraud practised on the part of that company, and whether in that event the company

should be barred of any claim to the moneys received from the Republic of

Mexico. Upon this question the legislative and executive branches of the

government have acted in perfect harmony. The question arises under the

Constitution of the United States, and a treaty made by the United States with a

foreign country is judicial in its nature, and one to which the judicial power of

the United States is expressly extended. Both branches of the government were

concerned in the enactment subjecting that question to judicial determination,and it cannot properly be said that the President, by approving the act of 1892

or by recognizing its binding force, surrendered any function belonging to him

under the supreme law of the land.

45 It was also said in argument that the act of Congress in some way—not clearly

defined by counsel—was inconsistent with the principles underlying

international arbitration, a mode for the settlement of disputes between

sovereign states that is now more than ever before approved by civilizednations. We might well doubt the soundness of any conclusion that could be

regarded as weakening or tending to weaken the force that should be attached to

the finality of an award made by an international tribunal of arbitration. So far

from the act of Congress having any result of that character, the effect of such

legislation is to strengthen the principle that an award by a tribunal acting under

the joint authority of two countries is conclusive between the governments

concerned, and must be executed in good faith unless there be ground to

impeach the integrity of the tribunal itself. The act of 1892 is a recognition of the principle that 'international arbitration must always proceed on the highest

principles of national honor and integrity.' Frelinghuysen v. Key, above cited.

By that act the United States declares that its citizens shall not through its


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agency reap the fruits of a fraudulent demand which they have induced it to

assert against another country. Such legislation is an assurance in the most

solemn and binding form that the government of this country will exert all the

power it possesses to enforce good faith upon the part of citizens who, alleging

that they have been wronged by the authorities of another country, seek the

intervention of their government to obtain redress.

46 We hold that the act of 1892 is not unconstitutional upon any of the grounds

adverted to; that the court of claims had jurisdiction to render the decree in

question; that such decree, unless reversed, is binding upon the parties to this

cause; and that this court, in the exercise of its appellate power, has authority to

re-examine that decree and make such order or give such direction as may be

consistent with law.

47 III. The court of claims did not make a finding of facts. It is thereforecontended on behalf of the United States that the appeal provided for by the act

of 1892 does not authorize a re-examination of the evidence, as in equity cases

generally; and that the present case comes within the rule prescribed by this

court under the authority of the act of March 3, 1863, 12 Stat. at L. 766, chap.

92 (Rev. Stat. § 708), providing that in connection with any final judgment

rendered in the court of claims there shall be a finding of facts.

48 In its opinion on the demurrer to the bill the court of claims said: 'The

directions of the statute [the act of 1892] as to the character of the decree seem

to be without doubt, and as the court in the trial of the cause is in the exercise of

equity powers, it would find no difficulty in entering such a decree as will carry

out the purpose of the statute.' 29 Ct. Cl. 432, 452. In its opinion on the final

hearing of the case the court below said: 'This being a proceeding in equity, this

court is not called upon to settle the facts by the finding of ultimate facts for the

consideration of the Supreme Court, but the whole record is transmitted to that

court, and the case is to be determined in the Su

Documents

La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899)